In a landmark decision, The Federal Court of Justice (Bundesgerichtshof), Germany’s highest civil law court, ruled today that donor conceived children have a right to know the identity of their donor.
The judgement is in line with the decisions of regional courts on the rights of donor offspring and with former BGH decisions on the right to information about a person’s ancestry. Anonymous sperm donations were never allowed under German law, as there is a constitutionally protected right to information about a person’s ancestry. However, as there were no clear legal regulations of sperm donation, the practice of doctors developed quite differently. For a detailed analysis of the legal situation in Germany regarding donor conception, read the DOE country report on Germany.
In the current case, the claimants were two donor conceived sisters, born 1997 and 2002 respectively, whose parents sued on their behalf. The regional court of Hanover said that they had the right to know their donor’s identity, but only at the age of 16, applying the age limit provided in the Personal Status Law (Personenstandsgesetz) for adopted persons. This was refused by the Federal Court of Justice, who said that “a minimum age was not necessary” for disclosing a sperm donor’s identity.
Spenderkinder, the German organisation of donor offspring, is pleased that the judgement provides a final clarification that donor offspring have the right to know the identity of their sperm donor. This will make it easier for donor offspring to claim their rights in the future from doctors and clinics. We are also very pleased that the Federal Court of Justice refused the idea of an age limit, as young children may already have an interest in their biological father. However, the questions of data retention and to the basic information of being donor conceived at all (many parents do not tell their children) remains unresolved.
Therefore, Spenderkinder hopes that the decision will send a strong signal to the coalition government to fulfill their promise that they will pass explicit legislation protecting the right of donor offspring. This means not only passing an explicit claim to know the donor’s identity, but also to retain the donor data for an extensive amount of time by entering the donor’s name into the extended birth registry (Geburtenregister) or to at least provide a public registry where every person can demand information of they are donor conceived. Also, donors must be protected from maintenance and inheritance claims.
DOE has written the following letter to the Economist regarding the article “Nice to gamete you – A solution to the shortage of donors“.
I was rather disappointed by your article on the alleged shortage of gamete donors in the UK. You hint that the abolishment of donor anonymity in the UK and “meagre” compensation are responsible for donor shortages, thereby bypassing all possible ethical arguments. Donating gametes is not comparable to providing a mere commodity, or a means of combating an ageing population. It creates human beings, who grow into adults with their own interests and wishes – including, frequently, the wish to know who their genetic parents are. The right to know about your ancestry is protected by the European Convention on Human Rights as well as the UN Convention on the Rights of the Child. These children also have a right to be assured that their parents will only use donor conception, which is a very challenging way to build a family, after careful consideration.
However it should be noted that the number of donors has actually more than doubled despite the decision to prohibit anonymous donations: from 272 in 2005 to 586 in 2013. Research indicates that the main motivation for many donors is altruistic – therefore often neither anonymity nor payment are decisive factors when men choose to become donors. Furthermore British donors are “underused” – i.e. most of them do not create the legal limit of ten families, supposedly because clinics do not want to share gametes with competitors. Consequently a national sperm bank might ensure better use of British donors, and hopefully also find responsible donors who have the future children’s best interests at heart.
The Irish government plans to ban anonymous sperm donation under new draft legislation. The Children and Family Relationships Bill will require clinics and hospitals from early next year to provide details of donors and children to a national donor-conceived person register.
According to Irish Justice Minister Frances Fitzgerald: “The key issue is to enable a child to know his or her identity. As a result anonymous donation will be prohibited,” the justice minister added.
Donor Offspring Europe welcomes the Irish government’s decision to respect and protect the rights of donor conceived persons and hopes that other European countries that still allow anonymous donations will follow.
We are proud to announce that our webpage is finally online, although there is still some work left to do. It has been a long way: Our organisations have been in contact with each other for over ten months, presenting our work and discussing the situation of donor conceived persons in our countries.
Now, we are happy to get in contact with the outside world and are looking forward to fulfilling our aims: lobbying for the rights of donor offspring and promoting contact amongst donor offspring. Hopefully, we are going to welcome some more donor conceived organisations during the upcoming years. There are still too many countries within the European Union where our voice is not present yet.